Opinion
No. 01-CV-1207 (DRH)
December 23, 2002
MICHAEL S. MARTIN, ESQ., Whitehall, New York, DONALD C. HASTINGS, ESQ., Loudonville, New York, Attorney for Plaintiff.
HON. GLENN T. SUDDABY, United States Attorney for the Northern District of New York, DIANE A. CAGINO, ESQ., Assistant United States Attorney, James T. Foley, U.S. Courthouse Albany, New York.
MEMORANDUM-DECISION AND ORDER
On November 17, 2000, plaintiff Frank Caruso ("Caruso") suffered injury to his left knee when he fell on interior stairs at the United States Post Office, Granville, New York ("Post Office"). Caruso alleges that his fall was caused by defects in the stairs and stairway handrail. He seeks monetary damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq. A bench trial was held on December 16, 2002. In accordance with Fed.R.Civ.P. 52, what follows constitutes the Court's findings of fact and conclusions of law. For the reasons stated below, judgment is granted to Caruso and damages are awarded in the total amount of $62,400.00.
Granville is located in Washington County approximately seventy miles northeast of Albany.
I. Findings of Fact
Caruso has lived in or about Granville for approximately fifty of his fifty-nine years. Caruso is 5'9" tall and on November 17, 2000, he weighed approximately 285 pounds. Prior to November 17, 2000, Caruso had become totally disabled as the result of cardiac bypass surgery for which he received benefits from Social Security and New York State. Caruso also held part-time employment as a member of the Granville town board.
The Post Office was constructed in 1936. Patrons entered and exited the Post Office through a vestibule stairway consisting of six stairs approximately 6' wide. This stairway connected the Post Office lobby with the exterior doorway. The tread of each step in the vestibule stairway was constructed of slate. Approximately 250 patrons visited the Post Office daily in recent years, generally using one side of the stairway to enter and the other to exit. As a result, the tread of each stair had worn, with depressions where patrons generally walked but with the center area of each tread less worn and perceptibly higher.
There were also handrails on each side of the stairway consisting of metal supports and wooden rails. The doorway at the bottom of the stairway consisted of double doors, both double-hinged, with horizontal rails across each door approximately three feet from the floor. Facing the door from the top of the stairway, the right door had two such rails but the left door only one. Caruso had visited the Post Office through the vestibule stairway approximately two to three times each week for years prior to November 17, 2000.
At approximately 1:30 p.m. on Friday, November 17, 2000, Caruso finished his business in the Post Office and proceeded out of the lobby into the vestibule. He began to descend the stairs on his right-hand side with his right hand on the handrail. As he did so, Caruso observed an elderly woman at the bottom of the stairway on his left side carrying a package and attempting with difficulty to exit the building. Intending to assist the woman, Caruso pulled his hand from the handrail, pinching his palm between the rail, which was loose, and the metal support. Caruso then began to descend the stairs in a diagonal direction toward the woman to assist her. As he did so, Caruso's right heel caught on the center of the tread of the second stair from the bottom, causing him to fall forward toward the double doors. Caruso reached for the top rail on the left door to catch himself, but none was present and he missed a grab for the other rail. Caruso also attempted to regain his balance by placing his left foot on the next step, but his left foot also caught on the center of that tread. Caruso fell at the bottom of the stairway with his left leg folded under his body as it landed on the floor.
After briefly inquiring if Caruso was hurt, the elderly woman quickly departed the Post Office. No one else appeared to assist Caruso. Eventually, Caruso was able to rise and reach his car. Fortuitously, Caruso was scheduled to see his personal physician at 2:00 p.m. Caruso drove himself to the appointment. His physician prescribed pain medication and ice for his knee. When the knee had not improved two weeks later, Caruso's physician referred him to Dr. Mark T. Kircher, an orthopedic surgeon. After two examinations and a magnetic resonance imaging (MRI) examination, Dr. Kircher performed surgery on Caruso's knee on January 19, 2001. Under a local anesthetic, Dr. Kircher made a six inch incision vertically along the outside of Caruso's left knee, found that the quadriceps tendon had ruptured from the kneecap approximate ninety percent and reattached the tendon.
Caruso remained hospitalized for approximately three days and his left leg was immobilized by a soft cast for six weeks. Caruso then underwent a six week program of physical therapy. At Dr. Kircher's last examination on May 9, 2001, Dr. Kircher found that Caruso's left knee was weaker than his right and was likely to remain so, leaving Caruso with a permanent, partial disability in his left leg. However, an independent medical examination on April 2, 2002 by an orthopedic sturgeon retained by the United States found that the size of Caruso's left knee then exceeded that of his right knee, there then existed no disparity in the strength of the left and right knees, and no medical reason appeared why Caruso could not perform the activities in which he engaged prior to his injury.
Caruso testified that he has continued physical conditioning for his knee at home following physical therapy.
II. Conclusions of Law A. Liability
Caruso's sole claim asserts that the United States is liable for his injury under the FTCA due to the negligence of the United States in failing to maintain the vestibule stairway at the Post Office in a safe condition. Under the FTCA, the United States may be found liable "only if its actions would render it liable under relevant state law." Shade v. Housing Auth. of City of New Haven, 251 F.3d 307, 314 (2d Cir. 2001). The relevant state law here is that of New York. "Under New York law, the elements of a negligence claim are: (i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that breach." Lombard v. Booz-Allen Hamilton, Inc., 280 F.3d 209, 214 (2d Cir. 2002) (citing Merino v. New York City Transit Auth., 639 N.Y.S.2d 784, 787 (1st Dep't 1996) and Nathan W. Drage, P.C. v. First Concord Sec., Ltd., 707 N.Y.S.2d 782, 787 (N.Y.Sup.Ct. 2000)).
1. Duty
Under New York law, a defendant owes a duty to exercise reasonable care under the circumstances. See Michalski v. Home Depot, Inc., 225 F.3d 113, 117 (2d Cir. 2000). "[F]oreseeability is the measure of liability." Wisner v. United States, 154 F.R.D. 39, 43 (N.D.N.Y. 1994) (Hurd, M.J.) (citations omitted). Thus, to establish this element, a "plaintiff must establish that there was a dangerous condition, and that either the United States affirmatively created the dangerous condition or had notice, actual or constructive, of same." Id.; Quarles v. Columbia Sussex Corp., 997 F. Supp. 327, 332 (E.D.N.Y. 1998).
Here, Caruso contends that the vestibule stairway was dangerous in three ways: the right handrail was loose from the metal base, the treads of the steps had worn, leaving a depression on each side with a higher center area, and a rail was missing from a door at the bottom of the stairway. The United States denies that any such dangerous conditions existed. Because, as discussed below, only the condition of the treads could constitute a breach of duty and proximately have caused Caruso's fall, see notes 2 3 infra, only that condition will be considered.
The credible evidence at trial established that the treads of the stairway had worn in a pattern creating depressions on the sides of each tread where Post Office patrons ascended and descended the stairway. Those depressions were evident to the naked eye and in wet weather, water would accumulate in puddles in the depressions. These depressions from wear on each side of the treads left a slight but perceptible ridge in the middle of each tread which was left unworn by the pedestrian traffic. The unevenness of the treads created a condition capable of causing a pedestrian to catch a shoe on the raised center area of a tread and to fall. Caruso has thus met his burden of establishing by a preponderance of the evidence that a dangerous condition existed.
The United States denies notice of any such dangerous condition. However, the evidence at trial established the following. First, the depressions in the treads and the higher center areas were visible and apparent. For example, as noted, puddles of water would accumulate in the depressions on wet days. Second, prior to November 17, 2000, at least two Post Office patrons had complained of the worn treads in the vestibule stairway. Finally, and most significantly, an individual who was employed by the Post Office for over twenty years up to and including November 17, 2000 credibly testified that she had discussed the dangerous condition of the treads on the vestibule stairs with the Postmaster of the Post Office as well as with his predecessor. This evidence suffices to satisfy Caruso's burden of demonstrating by a preponderance of the evidence that the United States had actual notice of the dangerous condition. Thus, the evidence established that the United States had a duty to protect individuals such as Caruso from the dangerous condition created by the worn treads in the vestibule stairway.
2. Breach
Having established a duty, Caruso must then demonstrate that the United States breached that duty. There is no dispute that the United States took no action to repair the worn treads or to notify patrons of the condition. Accordingly, Caruso has satisfied his burden of demonstrating that the United States breached its duty of care.
As noted above in subsection (1), Caruso asserts that a dangerous condition also existed as a result of a missing rail on the left door at the bottom of the stairway. However, while a rail was missing, the purpose of the missing rail was to protect the glass portion of the door from contact with patrons pushing the door open and was not designed or intended to serve as a handrail. Therefore, its absence did not breach any duty of care owed to Caruso here as the missing rail could not reasonably have been intended to assist a person in maintaining balance or averting a fall in the vestibule stairway.
3. Causation
"Proximate cause is defined as a cause 'which in a natural sequence, unbroken by any new cause, produces that event and without which that event would not have occurred.'" Sanchez v. Bellefeuille, 855 F. Supp. 587, 595 (N.D.N.Y. 1994) (Munson, S.J.) (quoting Caraballo v. United States, 830 F.2d 19, 22 (2d Cir. 1987)). The test for proximate cause is whether the defendant's actions or failure to act was a "substantial factor in the sequence of causation and whether the injury is reasonably foreseeable or anticipated as a natural consequence" of the defendant's actions or his failure to act. Id.Here, the only evidence of Caruso's fall came from Caruso. Caruso testified that as he crossed the stairway diagonally to assist the elderly woman, his right heel caught on the rise between the depressions in the center of the second tread from the bottom causing Caruso to fall toward the bottom of the stairway. Caruso then brought his left leg around to the bottom tread in an effort to regain his balance but also caught the rise in the center of that tread. Caruso then fell to the ground with his left leg folded under his body as he landed from the fall. This testimony was uncontradicted by contrary evidence, was corroborated in part by evidence of the existence of the wear on the stairway treads and the fact that Caruso's injury was consistent with his description of the incident, and was otherwise credible. Caruso's description of the manner in which he suffered the injury is accepted as fact.
Caruso also testified that he was holding the right handrail at the top of the stairway when he first observed the elderly woman. According to Caruso, his right hand was pinched between the wooden rail and its metal base as he removed his hand from the rail to move across the stairway. However, it is clear that Caruso took at least two if not three steps down the stairway without falling after removing his hand from the handrail. There is no evidence that the handrail or any pinch to Caruso's hand contributed in any way to Caruso's fall. Therefore, Caruso has failed to establish that any dangerous condition posed by the loose handrail was a proximate cause of his injury.
These facts establish by a preponderance of the evidence that the worn treads on the bottom two stairs were substantial factors in causing Caruso to fall and that without this dangerous condition, Caruso would not have fallen. Caruso has thus met his burden of establishing that the dangerous condition created by the worn treads proximately caused the injury he suffered in the fall and that the United States is liable for the damages resulting from that injury.
B. Comparative Negligence
Under New York law, an award of damages to a claimant for personal injuries must be reduced by the percentage of "the culpable conduct attributable to the claimant." N.Y. C.P.L.R. § 1411 (McKinney 1997); Integrated Waste Servs., Inc. v. Akzo Nobel Salt, Inc., 113 F.3d 296, 300 (2d Cir. 1996) (holding that the enactment of § 1411 abolished the defenses of contributory negligence and assumption of risk). Here, the evidence established that Caruso had visited the Post Office two to three times a week for many years using the vestibule stairway each time. He was thus familiar with the stairway and its condition. The worn treads of the stairs were also apparent to Caruso from routine observation. Thus, Caruso's decision to descend the stairs in a diagonal direction across the rise in the center of the treads contributed to causing his fall and injury. Given the circumstances of Caruso's fall, the Court finds that Caruso's culpable conduct was thirty-five percent responsible for his fall and injury, and the award of damages to Caruso will be reduced by that percentage.
C. Damages
Caruso does not seek recovery for any economic or special damages but seeks recovery only for pain and suffering. There exists, of course, no precise formula for determining the monetary value of pain and suffering under New York law and such determination must be guided by a standard of reasonableness in light of all the evidence. See Estevez v. United States, 72 F. Supp.2d 205, 208 (S.D.N.Y. 1999). A claim for pain and suffering includes loss of enjoyment of life. See Rounds v. Rush Trucking Corp., 211 F.3d 185, 188 (2d Cir. 2000); McDougald v. Garber, 73 N.Y.2d 246, 256-57 (1989).
Here, the evidence establishes that Caruso suffered severe pain in the fall. The near complete rupture to his quadriceps tendon left him unable to use his left leg without assistance. Unable to climb the stairs in his home to his bedroom, Caruso slept in a reclining chair on the first floor for several days and climbed the stairs thereafter only with great difficulty. The pain subsided, but pain and the inability to use his left leg without assistance continued. Two months later, Caruso underwent a significant surgery which involved a six inch incision in his knee, drilling two holes in his kneecap and reattaching the ruptured tendon to the kneecap through the holds. Caruso was hospitalized for several days and his left leg remained in a cast for six weeks during which Caruso could walk only with assistance. There followed physical therap. for approximately six weeks during which Caruso's condition gradually improved to the point where he could walk and climb without assistance. By April 2, 2002, the size and strength of Caruso's left leg had returned to equal or exceed that of his right leg. While Caruso continues to experience episodic pains in his left knee, the pains pass and are not debilitating.
As to Caruso's enjoyment of life, Caruso principally enjoyed walking, bowling and riding a motorcycle prior to his injury. He was unable to engage in these activities for at least six months following his injury. Caruso resumed the ability to walk after approximately six months. He has refrained from bowling since his recovery although his April 2, 2002 examination revealed no medical reasons preventing him from doing so. Caruso has recently resumed riding a motorcycle but with reduced frequency. Again, the April 2, 2002 medical examination revealed no medical reason precluding Caruso from resuming this activity without restriction.
This evidence establishes that Caruso suffered substantial pain, loss of the use of his left leg and significant discomfort and inconvenience for two months following the injury. He then underwent invasive surgery which required hospitalization but which succeeded in repairing the injury to his left leg. The recovery from that surgery required approximately thee to four months. Thus, Caruso's injury significantly and substantially caused him pain and discomfort, and substantially impeded his enjoyment of life for that six month period. However, Caruso has enjoyed a near-complete recovery marred only by episodic shooting pains and a permanent six inch scar on the outside of his left knee.
The examination on April 2, 2002 also revealed crepitation in the left knee, indicating that such crepitation was likely permanent. However, there was also crepitation in the right knee. The evidence failed to link the lingering crepitation in the left knee to Caruso' fall rather than to whatever unrelated causes existed for the crepitation in the right knee. Accordingly, Caruso is not entitled to an award of damages for any remaining crepitation in his left knee.
Cases considering the monetary value of a fractured rib are necessarily limited in their applicability by the particular facts of each case. Nevertheless, a survey of such cases provides a measure of guidance in this determination. Awards for past pain and suffering for an injury of this nature have ranged from $5,000 to over $200,000. See, e.g., Madsen v. Merola, 288 A.D.2d 520, 521 (3d Dep't 2001) (upholding award of $75,000 for past pain and suffering to plaintiff whose knee and groin were injured in a motorcycle accident where plaintiff had undergone reconstructive surgery on the same knee months earlier); Pfeifer v. Musiker Student Tours, Inc., 280 A.D.2d 266 (1st Dep't 2001) (upholding award of $200,000 to fifteen year old plaintiff for scars to chin, hip, elbow and knee sustained in fall from bicycle); Cotto v. Coyle, 258 A.D.2d 554 (2d Dep't 1999) (affirming award of $30,000 for past pain and suffering and $210,000 for future pain and suffering for injury to knee in sidewalk slip-and-fall); Coutrier v. Haraden Motorcar Crop., 237 A.D.2d 774, 775 (3d Dep't 1997) (affirming award of $5,000 for past pain and suffering and $30,000 for future pain and suffering after 50% reduction for comparative negligence for injury to knee in automobile accident which required arthroscopic surgery); Cochetti v. Gralow, 192 A.D.2d 974 (3d Dep't 1993) (reversing on other grounds a jury award of, inter alia, $10,000 after a 40% reduction for comparative negligence for a knee injury suffered in a slip-and-fall on ice resulting in surgery).
Each case is necessarily dependent on its particular facts. Given the particular facts here, the Court finds that Caruso is entitled to a total of $85,000.00 for the pain and suffering suffered from November 17, 2002 to the date of this decision. After reduction by 35% for comparative negligence, Caruso is awarded $55,250.00 for past pain and suffering. The Court also finds that Caruso is entitled to a total of $11,000.00 present value for future pain and suffering for eleven years from the date of this decision. After reduction by 35% for comparative negligence, Caruso is awarded $7,150.00 for future pain and suffering.
According to actuarial tables, a man who is presently fifty-nine years old has a life expectancy of an additional nineteen years. See 1A N.Y. Pattern Jury Instructions — Civil, app. A at 1228 (3d ed. 1997). However, the evidence establishes that Caruso previously underwent cardiac bypass surgery and is significantly overweight. These facts warrant a reduction of the life expectancy set forth in the actuarial tables.
III. Conclusion
For the reasons stated above, it is hereby
ORDERED that judgment is granted to plaintiff Frank Caruso against defendant United States in the total amount of $62,400.00.00.
IT IS SO ORDERED.